In a 5-0 Decision on March 4, 2002, the New Jersey Supreme Court continued its nation-leading protection against police searches. The court decided, with 4 judges signing the primary decision and 1 writing a concurrence, that even with written consent police were not allowed to search the person or vehicle of someone stopped for a traffic violation without "reasonable, articulable suspicion"unrelated to the traffic violation for which the vehicle was stopped.

The New Jersey Court ruled on the basis of the New Jersey State Constitution and thus it is not reviewable by the federal Supreme Court. NJ has long had some of the most protective constitutional law regarding police searches during traffic stops. Until this ruling, the New Jersey police were required by the courts to have each person actually sign a consent document in order to allow traffic-stop searches. The consent documents were quite strongly worded, in an attempt to inform citizens that they had the right to refuse searches. The text of the consent document included:

"'Consent' that is the product of official intimidation or harassment is not consent at all."
Florida v. Bostick, 501 U.S. 429.

I have knowingly and voluntarily given my consent to the search described above.

I have been advised by [the investigating officer] and fully understand that I have the right to refuse giving my consent to search.

I have been further advised that I may withdraw my consent at any time during the search.

But the court ruled that even this unusually strong attempt to foster informed consent had failed to provide the protection required under the New Jersey Constitution's Article I, paragraph 7. The Court mentions a study which found that "nearly ninety-five percent of detained motorists granted a law enforcement officer's request for consent to search." They use this as evidence that even with the consent form, people do not feel free to say no to the 'request' by police officers. The NJ Court writes:

The cumulative effect has been that we no longer have confidence that a consent to search under Johnson truly can be voluntary or otherwise reasonable without modifying the Johnson standard. "'Consent' that is the product of official intimidation or harassment is not consent at all. Citizens do not forfeit their constitutional rights when they are coerced to comply with a request that they would prefer to refuse." Florida v. Bostick, 501 U.S. 429, 438, 111 S. Ct. 2382, 2388, 115 L. Ed.2d 389, (1991). What can be synthesized from a review of scholarly articles, cases from around the country, and the empirical data referred to in this opinion, is that despite use of the first-tell-then-ask rule or the voluntary and knowing standard adopted in Johnson [68 N.J. 349 (1975)], consent searches following valid motor vehicle stops are either not voluntary because people feel compelled to consent for various reasons, or are not reasonable because of the detention associated with obtaining and executing the consent search. Stated differently, hindsight has taught us that the Johnson standard has not been effective in protecting our citizens' interest against unreasonable intrusions when it comes to suspicionless consent searches following valid motor vehicle stops.

The New Jersey Court affirmed the lower appellate court which held "in the absence of an articulable suspicion, the request to search to which the driver assented offended the State Constitution." [Carty, supra, 332 N.J. Super. at 202] The Supreme Court included the appellate's reasoning:

Requests to consent to an automobile search are obviously, as a matter of common experience, likely to be complied with. Consequently, baseless requests almost inevitably result in a search. It is our view that travelers on our State highways should not be subject to the harassment, embarrassment[,] and inconvenience of an automobile search following a routine traffic stop unless the officer has at least an articulable suspicion that the search will yield evidence of illegal activity.

The New Jersey Supreme Court goes on to be extremely clear about what they're saying and explicitly deny the use of consent-based searches without there being some evidence of a crime:

We agree with the Appellate Division that consent searches following a lawful stop of a motor vehicle should not be deemed valid under Johnson unless there is reasonable and articulable suspicion to believe that an errant motorist or passenger has engaged in, or is about to engage in, criminal activity. In other words, we are expanding the Johnson two-part constitutional standard and holding that unless there is a reasonable and articulable basis beyond the initial valid motor vehicle stop to continue the detention after completion of the valid traffic stop, any further detention to effectuate a consent search is unconstitutional. A suspicionless consent search shall be deemed unconstitutional whether it preceded or followed completion of the lawful traffic stop. The requirement of reasonable and articulable suspicion is derived from our State Constitution and serves to validate the continued detention associated with the search. It also serves the prophylactic purpose of preventing the police from turning a routine traffic stop into a fishing expedition for criminal activity unrelated to the stop. [NJ State vs Courty]

The only disagreement between the justices is on the somewhat technical grounds of whether the decision is required by the New Jersey State Constitution or whether it should be adopted as a prophylactic [protective] rule of law in order to prevent abuses by police. The majority agreed that it should be considered a Constitutional issue, but the J Stein wrote in a concurring opinion that:<

"I would impose precisely the same condition as does the Court, but would not rely on the State Constitution as its source. Rather, based on the virtually uncontradicted evidence that some police officers in New Jersey frequently have abused the power to request consents to search motor vehicles after routine traffic stops _ and that motorists routinely accede to those requests _ I would hold that the requirement of reasonable and articulable suspicion that a search will reveal evidence of a crime is simply a prophylactic rule of law adopted by this Court for the purpose of preventing abuses of the power of law enforcement officers to request motorists to consent to searches of their motor vehicles."

Another heartening point in the decision is that the Court makes it clear that simply acting nervous and giving "furtive glances" at other occupants of the vehicle cannot be the sole grounds on which an officer bases his suspicion for a search: "under the New Jersey Constitution, the appearance of nervousness is not sufficient grounds for the reasonable and articulable suspicion necessary to extend the scope of a detention beyond the reason for the original stop." Simply being unsettled when pulled over by the police cannot be grounds for a search.

An important note, which the concurrence makes very clear, is that this decision applies only to vehicle stops and to no other area of law. As a side note, the Court also makes clear that this ruling does not change the status of searches related to roadblocks which might be required for public safety (drunk driving road blocks) or national security (terrorism-related roadblocks). "Therefore, the holding in the present case is limited in that it pertains to consent searches pursuant to a stop for a traffic infraction."

The New Jersey Supreme Court's decision is also notable in the collection of 4th Amendment law citations it provides. It is an excellent resource to use to research other similar case law and includes a wide variety of citations in New Jersey law, other state law, and federal 4th Amendment decisions. We hope that other state courts will consider adopting similar restrictions on the so called "consent searches".

The case also opens the issue of how much New Jersey police are allowed to question someone outside of the bounds of the traffic violation for which they were stopped. While the decision does not directly address this, since New Jersey police are no longer allowed to ask otherwise law-abiding motorists for permission to search their car and the NJ Supreme Court has banned 'fishing expeditions' by police during traffic stops, it seems likely that a reasonable reading of this decision includes substantially limiting the New Jersey police's power to ask questions unrelated to the stop. "[This new standard] prevent[s] the police from turning routine traffic stops into a fishing expedition for criminal activity unrelated to the lawful stop." [NJ State vs SJ Carty, March 4 2002]

Notes:"Reasonable, articulable suspicion"
This standard for when a police officer may choose to detain someone, is known as the Terry Standard from a case in 1968 [Terry v Ohio 392 U.S. 1 (1968)] in which the Federal Supreme Court ruled that police had the right to detain and frisk individuals for weapons if they had "reasonable" suspicion that the individual is involved in a crime. The standard which the Supreme Court developed has become a standard in law across the United States. Police are expected to have a suspicion they can describe in words ("articulable") which is "reasonable". What is 'reasonable' is up to the judge hearing the case. "Officer must be able to point to specific and articulable facts which, when taken together with rational inferences from those facts, reasonably warrant the intrusion."http://currentstudents.law.miami.edu/outlines/crim_pro_out.html